US Supreme Court vacates Alabama's win on redistricting plan, remands for new proceedings

The New York Times reports: The Supreme Court on Wednesday sided with black and Democratic lawmakers in Alabama who said the State Legislature had relied too heavily on race in its 2012 state redistricting by maintaining high concentrations of black voters in some districts.

The vote was 5 to 4, with Justice Anthony M. Kennedy joining the court?s four more liberal members to form a majority.

Justice Stephen G. Breyer, writing for the majority, said a lower court had erred in considering the case on a statewide basis rather than district by district. He added that the lower court had placed too much emphasis on making sure that districts had equal populations and had been "too mechanical" in maintaining existing percentages of black voters.

Richard L. Hasen, an expert on election law at the University of California, Irvine, said Wednesday's decision might represent only a short-term victory for the plaintiffs.

"It seems likely on remand that at least some of Alabama's districts will be found to be racial gerrymanders," he wrote in a blog post. "This means that some of these districts will have to be redrawn to 'unpack' some minority voters from these districts."

Disclosure: I am one of the counsel for the prevailing Alabama Legislative Black Caucus in one of the two consolidated cases. James U. Blacksher (of Birmingham) is lead counsel, Eric Schnapper (U of Washington Law School) argued in the Supreme Court, and UW Clemon (of Birmingham) is also on the team.

Alabama school boards do not have 11th Amendment immunity against employee suits

For the last two years, Kathryn Piscitelli (of Orlando, FL) and I have been resisting the Madison City School Board's defense that it is an "arm of the state" and therefore immune from suit under the Eleventh Amendment to the US Constitution. A magistrate judge, a district judge, and now a panel of the Eleventh Circuit Court of Appeals has agreed with us that the Board is not immune. (We were assisted in the Circuit Court by Phil Hostak of Washington DC. Phil did a great job of arguing the case.)

The underlying lawsuit is a claim under the Uniformed Services Employment and Reemployment Act (USERRA). Our client, Mike Weaver has been called to the service of his county several times during the Iraq and Afghanistan wars. His complaint alleges that, beginning in 2007, his job duties had been reduced when he returned, that his status in the workplace has been decreased, and he has not received a raise since then (but all other central-office employees of the board have had pay raises). Now that we have won on this defense, we are looking forward to litigating the merits of the case.

A win for a USERRA client

For the last two years, Kathryn Piscitelli (of Orlando, FL) and I have been resisting the Madison City School Board's defense that it is an "arm of the state" and therefore immune from suit under the Eleventh Amendment to the US Constitution. A magistrate judge, a district judge, and now a panel of the Eleventh Circuit Court of Appeals has agreed with us that the Board is not immune. (We were assisted in the Circuit Court by Phil Hostak of Washington DC. Phil did a great job of arguing the case.)

The underlying lawsuit is a claim under the Uniformed Services Employment and Reemployment Act (USERRA). Our client, Mike Weaver has been called to the service of his county several times during the Iraq and Afghanistan wars. His complaint alleges that, beginning in 2007, his job duties had been reduced when he returned, that his status in the workplace has been decreased, and he has not received a raise since then (but all other central-office employees of the board have had pay raises). Now that we have won on this defense, we are looking forward to litigating the merits of the case.

Alabama Legislative Black Caucus v. Alabama, preview

Rick Hasen has written a preview of a case on which I am one of the counsel for the petitioners.

The Supreme Court has long ignored Justice Felix Frankfurter's warning to stay out of the political thicket. It regularly hears challenges to redistricting cases (not to mention lots of other types of election cases), raising issues from the one-person, one-vote rule to vote dilution under the Voting Rights Act, to racial and partisan gerrymandering claims. The Court's decision to hear a part of a challenge to Alabama's state legislative redistricting plan enacted after the 2010 census (in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, set for argument on November 12) brings all of these issues together in a seemingly technical but high-stakes case, showing the artificiality of separating issues of race and party in redistricting, featuring a bold role reversal in political parties' use of racial gerrymandering claims, and offering a surprising new threat to the constitutionality of the Voting Rights Act. - Argument preview: Racial gerrymandering, partisan politics, and the future of the Voting Rights Act : SCOTUSblog

Contacting my office

Email to me: Please do not email anything confidential to me until I have agreed to take your case. If you don’t want your employer to know what you are telling me, never use your work email to write me. Email: [my last name]@votelaw.com.

ADC files motion for preliminary injunction

ADC is suing the Alabama Attorney General to be overturn the ban on PAC-to-PAC transfers if the transfer is going to be used for independent expenditures. This is the ADC's updated motion for preliminary injunction.

Birmingham News report on suit to undo part of State takeover of city schools

The Birmingham News reports on a lawsuit filed by Edward Still for five voters in the City of Birmingham: The state takeover of Birmingham city schools violated the Voting Rights Act of 1965 by overriding the votes of elected board members, a lawsuit filed this week claims.

The federal lawsuit was filed by five voters, including Birmingham Board of Education members Virginia Volker and Emanuel Ford and Alabama Education Association representative Michael Todd, who lives in the city.

The suit, filed against state Superintendent Tommy Bice, former state Superintendent Ed Richardson - who is leading the takeover in Birmingham - and the state Board of Education, says the takeover transferred power from a majority-black electorate and majority-black school board in Birmingham to the state Board of Education, which has a majority-white membership.

"Supreme Court's Arizona immigration law ruling could impact Alabama"

The Birmingham Business Journal reported: A U.S. Supreme Court ruling on Arizona's law targeting illegal immigration could have serious implications for Alabama's version of the law that both supporters and opponents say is even tougher than the Arizona's 2010 law.

In a split decision announced Monday, the court struck down most of Arizona's strict law, but upheld a key provision allowing police to question and briefly detain immigrants they believe to be in the country illegally. ...

The 11th Circuit Court, which is hearing challenges to the Alabama law, had delayed its final ruling until after the high court’s decision on the Arizona law.

According to Birmingham civil rights attorney Edward Still, the court could ask for additional briefings from each side to determine whether Alabama’s law is the same or different from Arizona’s.

“Or they could say, ‘Well, the Alabama statute, in this particular case, is verbatim the same as the provisions that were struck down in Arizona; and therefore, we’ll just apply that,’” he said. -- Read the whole article on the Business Journal site.

Bills proposing amendments to USERRA

Three bills to amend USERRA have been introduced recently.

HR 3670. The Transportation Security Administration (the folks at the airports who can see into you with their Super Detecto Rays) are presently exempt from abiding by USERRA. This bill would make the TSA subject to USERRA. [UPDATE: On 30 May, the House suspended the rules and agreed to this bill on a voice vote.]

S. 2299. Currently, the United States Attorney General can bring suit against a State or State agency on behalf of a servicemember, but the case is styled as an action by the United States against the State of ___. S. 2299 would change the nature of the suit to one that is truly on behalf of the United States. The servicemember whose claim is the basis for the suit may intervene to obtain specific relief.

S. 3233 (the Servicemembers Access to Justice Act). This bill would amend several provisions in USERRA, including the following provisions:

Section 2. “A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th amendment to the Constitution or otherwise….”

Section 3. “Notwithstanding any other provision of law, any clause of any agreement between an employer and an employee that requires arbitration of a dispute arising under this chapter shall not be enforceable.”

Section 4. In cases where the plaintiff suffered no loss of wages, he or she could recover for any other “actual monetary losses.” In addition, this sction would change the amount of liquidated damages to at least $10,000. Finally, it would add a provision allowing punitive damages if the employer has 25 or more employees and the trial court “determines that the employer’s violation of this chapter was done with malice or reckless indifference to the rights of the person under” USERRA.

Two USERRA forms for notifying your employer of beginning and ending of military service

Stateside Legal, a web site supported by Pine Tree Legal Assistance of Maine and the Arkansas Legal Services Partnership has two interactive forms for servicemembers' notice to their employers. One is for informing your employer that you are leaving for military service and the other for informing the employer when you will be back and ready to go to work. See http://statesidelegal.org/search/statesidesearch/userra.

USERRA amended to allow suits for hostile work environment

Congress has amended and the President has signed a bill with dozens of provisions to help veterans be retrained, hired, etc. Tucked into the bill is an amendment to USERRA clarifying the definition of a “benefit” in USERRA. The bill adds the italicized words so that it now reads as follows:

The term “benefit”, “benefit of employment”, or “rights and benefits” means the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

VOW to Hire Heroes Act of 2011, Pub.L. 112-56 § 251, Nov. 21, 2011.

The genesis of the amendment can be traced to a recommendation from the Department of Labor for a “clarification” of the law because of inconsistent court decisions holding both that a cause of action for hostile work environment under USERRA did and did not exist. The Department’s report to Congress stated,

DoL considers it a violation of USERRA for an employer to cause or permit workplace harassment, the creation of a hostile working environment, or to fail to take prompt and effective action to correct harassing conduct because of an individual’s membership in the uniformed service or uniformed service obligations. Although the Department believes that the statute currently supports this reading, in light of the risk of contrary interpretations by the courts, the Department recommends that Congress consider clarifying that USERRA prohibits workplace harassment or the creation of a hostile working environment.

The practical effect of the amendment is to overturn the United States Court of Appeals for the Fifth Circuit’s decision in Carder v. Continental Airlines, Inc., 636 F.3d 172 (March 22, 2011), where the court held, on an issue of first impression, that service members could not sue their employers under USERRA for a hostile work environment,

Belcher v. Jefferson County Board of Education, 474 So.2d 1063 (Ala 1985) -- established principle that public agencies must follow own rules, and employees have cause of action based upon failure to do so

In 1981, Isaac Asimov wrote the following limerick on a postcard to Still in celebration of Still’s victory in representing a teacher who had been fired for giving Asimov and John Ciardi’s book Limericks, Too Gross to a student:

First Amendment case against portion of Alabama's campaign finance law filed

My co-counsel and I filed a new suit against the provision of Alabama's campaign finance law forbidding PAC-to-PAC transfers. The law basically prohibits any transfer between political actors except personal contributions to any group, PAC contributions to principal campaign committees, and limited payments from principal campaign committees to political parties.

Keep your own timesheet

The U.S. Department of Labor has released an iPhone app called DOL-Timesheet. Here is the description from iTunes Preview: "This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek." By the way, the app is free, even though iTunes has a link to "buy and download."

If you have an Android phone, there are several free apps available to do the recording, if not the overtime pay calculation. I have not tried any of these, so I cannot warrant any of them. Go to the Android Market.

USERRA Manual 2011 now available

"This title provides practical background and practice information for attorneys assisting military personnel returning from active duty with employment-related issues. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) sets forth a detailed regulatory scheme of leave rights and mechanisms for enforcement of those rights. This title is a must-have for employment practitioners as a large number of Reserve and National Guard personnel will be returning from active duty within the next one to five years." -- West Store

Edward Still appointed to Alabama Advisory Committee to US Civil Rights Commission

The U.S. Commission on Civil Rights has appointed 15 Alabama citizens to its Alabama State Advisory Committee.

Kimberly Tolhurst, Delegated the Authority of the Staff Director of the U.S. Commission on Civil Rights, announced the appointment of Valerie Askew of Birmingham, Norman Baldwin of Tuscaloosa, David Beito of Northport, Lula Bridges of Notasulga, Margaret Brown of Birmingham, Jim Couch of Tuscumbia, Leida Javier-Ferrell of Mobile, Richard Finley of Birmingham, Randy Kelley of Gadsden, Shana Kluck of Vance, Raphael Maharaj of Mobile, Kevin Newsom of Vestavia Hills, Maurice Shevin of Birmingham, L'Tryce Slade of Birmingham, and Edward Still of Homewood. The Commission appointed Professor David Beito as Chairman. The appointments are for two years and members serve without compensation. -- U.S. Civil Rights Commission Announces Appointments to the Alabama State Advisory Committee -- WASHINGTON, April 27, 2011 /PRNewswire-USNewswire/ --

Update on Lynch v. State of Alabama

We are now two weeks into the trial of Lynch v. State of Alabama. The Huntsville Times has been covering the case every day. See their stories here. As we move to Birmingham for the third week of testimony, I wonder if the Birmingham News will pick up the burden of coverage.

Disclosure: The plaintiffs are represented by James Blacksher, Larry Menefee, and me.

Judge enjoins law meant to stop AEA from getting payroll deductions

The Huntsville Times reports: A federal judge issued a temporary injunction this afternoon halting a new state law that could potentially cripple a statewide teachers' organization.

U.S. District Judge Lynwood Smith issued the injunction against a law passed by the Alabama Legislature in December that bans school employees from having their Alabama Education Association membership dues directly deducted from their paychecks. The law was to go into effect on Sunday.

Dr. Paul Hubbert, executive secretary of AEA, said the organization had been hoping for a ruling on the injunction before the law goes into effect.

"Once the law goes into effect, we will lose January dues, which are collected in February," Hubbert said shortly before the ruling was filed. "We may also lose February dues, collected in March. A couple of months' worth of loss makes it hard to operate." Hubbert could not be reached immediately after the filing. -- Read the whole story --> Federal judge halts ban on payroll deduction to Alabama Education Association | al.com

Disclosure: I am one of the attorneys representing the AEA. A copy of the opinion is shown below:

The Alabama Rules of Professional Responsibility require this statement: "No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers."